NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2540-12.
Anthony B. Vignuolo argued the cause for appellant (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, attorneys; Mr. Vignuolo, of counsel; Anthony T. Betta, on the brief).
Jeffrey S. Intravatola argued the cause for respondents (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Intravatola, of counsel and on the brief).
Before Judges Ostrer and Carroll.
Plaintiff Brunswick Bank & Trust (Brunswick) appeals from the trial court's January 25, 2013 order enforcing a purported settlement of Brunswick's claims against defendants Dorothy D. Intravatola, LLC (LLC) and Dorothe Intravatola (Dorothe).Having reviewed the record in light of applicable legal principles, we discern genuine issues of material fact pertaining to whether the parties reached a binding settlement as defendants allege. Consequently, we reverse and remand.
Brunswick loaned defendants $308, 000, evidenced by a note that was secured by a mortgage on property that LLC owned in Monroe Township. Brunswick also loaned Dorothe $200, 000, evidenced by a note secured by a mortgage on property that she owned in Jamesburg Borough. In an April 2012 Law Division complaint, Brunswick alleged the borrowers defaulted in their payment obligations under both notes. Brunswick alleged principal balances due of over $198, 000 on the Monroe note, and over $147, 000 on the Jamesburg note.
Defendants contended that the parties agreed to a settlement of Brunswick's claims. The alleged agreement initially provided that Brunswick would accept deeds in lieu of foreclosure on both properties, in full satisfaction of the notes. However, defendants claimed that the agreement was then modified, permitting Dorothe to sell the Jamesburg property to a third party and satisfy all liens and the note secured by the property. Under the alleged modification, Brunswick still agreed to accept a deed in lieu of foreclosure in connection with the Monroe property. When Brunswick rejected the Monroe deed, defendants sought an order enforcing the alleged settlement as modified.
In support of their allegations, defendants relied on certifications of their attorney, Jeffrey S. Intravatola (Jeffrey). Jeffrey alleged, "Initially, discussions regarding settlement were had wherein Plaintiff sought to receive Deeds in lieu of foreclosure for the two properties in exchange for releasing the claims against the Defendants and dismissing this case." However, it was discovered that there existed judgments that "needed to be satisfied before the properties could be [d]eeded to the Plaintiff."
Jeffrey wrote to Brunswick's counsel in July 2012 stating he would personally pay the outstanding judgments. He said, "[I]f Brunswick Bank & Trust is willing to settle the case by receiving Deeds to the properties in exchange for a discharge of the notes and mortgages, I think that we could accomplish same." Although Jeffrey's letter appeared to contain only an offer to settle, Brunswick admitted that it accepted the offer, and told Jeffrey it was willing to accept the deeds in lieu of foreclosure under those terms. Brunswick did not set a firm date for receiving the deeds. Brunswick's attorney, Anthony T. Betta, certified that Brunswick was willing to accept the deeds "if the Defendants provided the deeds as soon as possible."
However, soon thereafter, defendants found a buyer for the Jamesburg property. The sale would enable defendants to satisfy all judgments and liens against the property, satisfy the Jamesburg note, and generate a ...